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Feds Take Crack at Easing Gainsharing Restrictions

It’s no secret that the world
of health-care payments is changing, transitioning from a fee-for-service approach
to a value-based model designed to share cost savings among physicians and
hospitals. While existing regulations can restrict the full deployment of these
so-called gainsharing arrangements, a pending final rule would ease the
obstacles.

The Health and Human Services
Office of Inspector General’s final rule, which is under review at the White
House Office of Management and Budget, would also make it easier for providers
to offer free services to patients without running afoul of the anti-kickback statute.
Kevin McAnaney, an attorney with the Law Offices of Kevin G. McAnaney in New
York, told me that easing restrictions on offering free services could have a
major impact on alternative payment models, allowing physicians to provide free
services to patients to promote better access to care.

However, McAnaney said the
provisions concerning gainsharing arrangements were unlikely to have much of an
impact, as the Medicare Access and CHIP
Reauthorization Act (MACRA) of 2015 already made such arrangements easier to
use. Prior to MACRA, hospitals were prohibited from paying cost-savings bonuses
to doctors that could induce reduced or limited services to patients, even if
the services were medically unnecessary. MACRA revised the wording of the
gainsharing civil monetary penalty to prohibit only payments made for reducing
or limiting medically necessary services.

The proposed rule revising
both gainsharing arrangements and beneficiary inducements was published in
October 2014. The rule would also add new safe harbors to the anti-kickback
statute for some Medicare Part D activities.

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